Fears v. Farmers' & Merchants' Bank

Supreme Court of Arkansas

Fears v. Farmers' & Merchants' Bank

3 S.W.2d 984, 176 Ark. 658, 1928 Ark. LEXIS 769

DecidedMarch 19, 1928

StatusPublished

This text of 3 S.W.2d 984 (Fears v. Farmers' & Merchants' Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fears v. Farmers' & Merchants' Bank, 3 S.W.2d 984, 176 Ark. 658, 1928 Ark. LEXIS 769 (Ark. 1928).

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Opinion

Hart, C. J.,

(after stating the facts). Counsel for appellants ask for a reversal of the decree upon the authority of Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654, where it was held that a cause does not stand for trial in equity until ninety days after issues joined, and that a decree prematurely rendered will be set aside on appeal. That case controls here. A decree was entered upon the pleadings upon the same day the answer of the guardian ad litem for the minor defendants was filed.

It is conceded by counsel for appellees that the decree was prematurely rendered, but they insist that the error was harmless, for the reason that the answer tendered no defense. Some of the appellants who were defendants in the chancery court were minors, and it was the duty of the guardian ad litem to deny all the allegations of the complaint and to require strict proof thereof. The guardian ad litem did file an answer denying the allegations of the complaint, but no proof was ever taken in the case, and a decree was entered before the minor defendants had any opportunity to take proof. In this connection it may also be stated that it was taken within ninety days after the 'adult defendants had filed an answer.

The prayer of appeal has been copied above, and purports to pray gn appeal for all the defendants by their attorney. The language of the prayer for appeal does not limit it to any defendant, as was the case in Camden National Bank v. Donaghey, 145 Ark. 529, 237 S. W. 457. Appellants all had a common defense, and the prayer for appeal, being* in general terms and for the defendants generally, without limiting* it to any individual defendant or defendants, the appeal must be deemed as taken for all.

The result of our views is that the decree must be reversed, because it was prematurely rendered, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.

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Hart, C. J.,

(after stating the facts). Counsel for appellants ask for a reversal of the decree upon the authority of Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654, where it was held that a cause does not stand for trial in equity until ninety days after issues joined, and that a decree prematurely rendered will be set aside on appeal. That case controls here. A decree was entered upon the pleadings upon the same day the answer of the guardian ad litem for the minor defendants was filed.

It is conceded by counsel for appellees that the decree was prematurely rendered, but they insist that the error was harmless, for the reason that the answer tendered no defense. Some of the appellants who were defendants in the chancery court were minors, and it was the duty of the guardian ad litem to deny all the allegations of the complaint and to require strict proof thereof. The guardian ad litem did file an answer denying the allegations of the complaint, but no proof was ever taken in the case, and a decree was entered before the minor defendants had any opportunity to take proof. In this connection it may also be stated that it was taken within ninety days after the 'adult defendants had filed an answer.

The prayer of appeal has been copied above, and purports to pray gn appeal for all the defendants by their attorney. The language of the prayer for appeal does not limit it to any defendant, as was the case in Camden National Bank v. Donaghey, 145 Ark. 529, 237 S. W. 457. Appellants all had a common defense, and the prayer for appeal, being* in general terms and for the defendants generally, without limiting* it to any individual defendant or defendants, the appeal must be deemed as taken for all.

The result of our views is that the decree must be reversed, because it was prematurely rendered, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.

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3 S.W.2d 984, 176 Ark. 658, 1928 Ark. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fears-v-farmers-merchants-bank-ark-1928.

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